When the Supreme Court overturned the constitutional right to get an abortion in June 2022, Justice Clarence Thomas suggested that the court “should reconsider” other rights it currently recognizes – like the rights for same-sex couples to have sex and marry.

If the Supreme Court overturns legal precedents on these and other issues, old state laws that haven’t been enforced, possibly for centuries, can suddenly spring back to life.

This is what happened after the Arizona Supreme Court ruled on April 9, 2024, that an 1864 abortion ban should be enforced. The ban is an example of zombie laws – old state laws that are neither enforced nor repealed.

I am a scholar of constitutional rights, particularly rights won in court like student speech, the right to direct one’s own medical care, abortion and parental rights.

There are many old and unenforceable state laws that are left on the books because of inertia. It might seem unnecessary for a state legislature to repeal a law that is not enforced or has been superseded by a more recent law.

But the recent Arizona abortion ban shows the consequences of assuming that old laws will always remain dormant.

Under Arizona’s 1864 abortion law, anyone who helps perform an abortion could be sent to jail for up to five years, unless the abortion was necessary to save the life of the pregnant person.

The law was originally passed by a territorial legislature, then was rubber-stamped into official state law 1913 by the new state Legislature after Arizona became a U.S. state in 1912. Planned Parenthood challenged this law as unconstitutional in the early 1970s. But that case was still making its way through Arizona courts when the Supreme Court ruled on Roe v. Wade in 1973, affirming the federal right to get an abortion.

In March 1973, an Arizona appeals court issued a short decision that said the Roe decision meant that the Arizona ban was also unconstitutional and could not be enforced.

The Arizona Legislature never formally repealed the law.

...continued